Minneapolis, Minnesota, US — Thirteen months to the day after George Floyd was murdered on the streets of south Minneapolis, Derek Chauvin, the ex-Minneapolis police officer who put his knee to Floyd’s neck for nine and a half minutes, will be sentenced for the second-degree murder conviction he received on April 20.
While Chauvin was found guilty on all three charges — second-degree murder, third-degree murder and second-degree manslaughter — Minnesota law stipulates that he will only be given a sentence for the severest of the three because they all arise out of the same behaviour.
Minnesota has statewide sentencing guidelines that determine what are called “presumptive sentences” — essentially recommended sentences for felony offences. Presumptive sentences offer guidelines for two decisions, whether to send someone to prison and for how long.
These guidelines are arrived at by pairing a felony conviction with an individual’s criminal history, Brad Colbert, a law professor at St Paul’s Hamline University who practises as a part-time public defender with the Minnesota Public Defender’s Office, told Al Jazeera.
In Chauvin’s case, because he has no criminal history of convictions, his presumptive sentence is a prison term between more than 10 and a half years and 15 years.
However, four aggravated sentencing factors have been found in this case — that Chauvin treated Floyd with particular cruelty, abused his position of power as a police officer, killed him with the active participation of three or more other people, and did so in front of minors.
“The slow death of George Floyd occurring over approximately six minutes of his positional asphyxia was particularly cruel in that Mr. Floyd was begging for his life and obviously terrified by the knowledge that he was likely to die,” Cahill wrote of the cruelty factor in his ruling.
“The defendant objectively remained indifferent to Mr. Floyd’s pleas.”
While Judge Peter Cahill is technically allowed to depart from the sentencing guidelines in either direction, he has to justify going above or below the recommended sentence if he does so.
The aggravated factors largely remove Cahill’s need to justify a longer sentence. The maximum possible sentence for second-degree murder in Minnesota is 40 years, but because of Chauvin’s clean criminal history, “we have some case law in Minnesota that indicates that [Cahill] is safe going up to a double departure without too much fear of it being reversed”, Colbert said.
The defence and the prosecution have submitted memos on what they believe the sentence should be. On June 2, the defence asked Cahill to sentence Chauvin to probation and limit his sentence to time served. The same day, the prosecution, spearheaded by Minnesota Attorney General Keith Ellison, asked for the opposite — a 30-year prison sentence.
“It’s important for [Chauvin] to be held accountable to the fullest extent of the law given the heinous nature of the crime as well as the fact that it happened in front of children and traumatized the entire community,” local activist and community leader Nekima Levy Armstrong told Al Jazeera.
“I think about all of the African American men who are in prison for 25 [years] to life for nonviolent drug offences and I compare that to what Derek Chauvin did. It definitely shows that we have two systems of justice in this country. Well, three — one for white people, one for people of colour, and one for police officers.”
“I think it’s safe to say that no one has any idea how this will go exactly,” Colbert says, “but one thing I’m confident in is that he will be going to prison.”
“Probation is not going to happen,” Mary Moriarty, the former chief public defender for Minneapolis’s Hennepin County, told Al Jazeera. “When [Cahill] wrote about the aggravating factors, what he wrote about most was how Chauvin had abused his position of authority as a police officer. He wrote about the particular cruelty inflicted upon George Floyd … I think his report pretty clearly indicates that he feels pretty strongly about that and that he will depart [from the sentencing guidelines].”
Moriarty found the defence’s memo particularly interesting. “It didn’t seem to me that Cahill was the audience for that,” she says. “They said that Chauvin is the product of a broken system, but they didn’t describe what they meant by that. When you see something like that for a public defence client, you’re usually talking about that person’s history of trauma, that kind of thing.”
She sees Chauvin as having doubled down on the idea that he did nothing wrong, that he did what he was trained to do, throughout his trial, meaning that the remorse that Cahill could be looking for when determining a sentence for Chauvin has been lacking.
Friday will be the first time that the public will hear what Cahill makes of all of this since he will likely address Chauvin to tell him the reasons for the length of the sentence. Moriarty, Levy Armstrong, and Colbert describe Cahill as an experienced and fair judge with a background in prosecution and public defence before his 14-year career as a judge.
Friday will also be the day that victim impact statements will be shared. “The friends, family, and loved ones of George Floyd will have an opportunity to tell the judge what George Floyd’s death and how he died has impacted them,” Moriarty said.
Once the sentence is handed down, Chauvin has the right to appeal, which Moriarty expects he will do. Chauvin’s lawyer in May filed a motion requesting a new trial alleging misconduct by the judge, jurors and prosecutors, but the bar to throw out the verdict is high.
However, in addition to this state-level case, Chauvin has been indicted federally on civil rights charges from this case as well as one for a 2017 incident in which he is accused of striking a 14-year-old child multiple times in the head with a flashlight.
“I’m sure that conversations are happening right now,” Moriarty said. “Chauvin certainly has some incentive to try to negotiate so that he gets similar time federally to what he gets from Cahill, but also that it would be concurrent and that he could do his time in federal prison. Because the federal prison budget is much better than the state, people would rather be in federal prison.”
Moriarty points out that, unlike on the state level, a federal plea can include the condition that Chauvin does not appeal the decision as a way to prevent putting witnesses and the community through another legal process.
Regardless of the outcome, Levy Armstrong expects that people will be out in the streets, but that the sentiment will vary. “I think that our community will be deeply disappointed and outraged if Chauvin receives a lighter sentence. I think people will take to the streets,” she said.
“I also think that if the judge sentences Chauvin appropriately — meaning on the higher end of the maximum sentence — that people will take to the streets, but with the feeling of relief that there was some accountability.